Gerald Brown, Jr. v. Andrew M. Saul ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 18, 2019
Decided January 10, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19‐1363
GERALD LOUIS BROWN, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 17 C 2631
ANDREW M. SAUL, Commissioner of
Social Security, Sheila Finnegan,
Defendant‐Appellee. Magistrate Judge.
ORDER
Gerald Brown suffers from hand tremors, along with a variety of other physical
impairments. In 2014, he applied for disability benefits. An administrative law judge
issued a partially favorable decision awarding a closed period of disability benefits after
finding that Brown was disabled but later achieved medical improvement. The district
court upheld the ALJ’s decision. In our view, however, the ALJ unreasonably concluded
that Brown’s tremors were an “on and off” problem that so improved by July 8, 2015 as
to eliminate any disability finding by that date. Because substantial evidence does not
support the ALJ’s decision, we vacate the judgment and remand for further
proceedings.
No. 19‐1363 Page 2
I
Brown, now 58, applied for Title II disability insurance benefits and
supplemental security income on July 1, 2014. He alleged impairments including
diabetes, high blood pressure, high cholesterol, and coronary artery disease. Until
March 2014, Brown had worked as a command‐center operator, where he monitored
cameras, managed alarms, and answered phones. That same month, he visited the
emergency room for shortness of breath and was diagnosed with a pulmonary artery
blood clot. He underwent a triple bypass the next month, after which he stopped
working.
A few days after his emergency room visit, Brown saw neurologist Kenneth
Holmes, reporting numbness and tingling in his hands and feet, as well as tremors and
shaking. In April 2014, at a consultation with neurologist Eric Ericson, Brown
complained of yearlong tremors that had gradually worsened. The tremors bothered
Brown when he used his hands. Dr. Ericson noted a “moderate action tremor, more
mild postural,” meaning that the tremors manifested when Brown used his hands.
Dr. Ericson further observed that the tremors were “severe enough that [they] merit[]
treatment” but declined to prescribe medicine because the stress of yet another
medication could exacerbate the tremors.
After Brown applied for disability benefits, he had an internal medicine
consultative exam in October 2014 with Dr. Charles Carlton, an examiner with the
Bureau of Disability Determination Services. During a series of tests, Brown exhibited
no difficulty with “fine and gross manipulative movements of the hands and fingers.”
Brown saw his neurologist, Dr. Ericson, again in November 2014, reporting that
his tremors had worsened. Brown said that the tremors limited certain activities—for
example, he could not write, put a key into a lock, or use a computer mouse. Upon
examination, however, Brown was able to draw a spiral and pour water from one cup
to another without tremors. And, although Brown was unable to write legibly,
Dr. Ericson noticed no tremors during writing.
In December 2014 and February 2015, Brown saw his primary‐care physician,
Sandhya Nagubadi, for a multitude of symptoms, including shaking in both hands and
worsening tremors. At the February 2015 visit, Dr. Nagubadi completed a disability
assessment form, limiting Brown to only occasional handling (gross manipulation) and
fingering (fine manipulation) and referring him back to Dr. Ericson.
No. 19‐1363 Page 3
A few days later, Brown saw Dr. Ericson, who observed a “moderate‐to‐severe
postural/action tremor.” Brown could not draw a spiral, write his name legibly, or pour
water from one cup to another without spilling. Dr. Ericson did not think the tremors
were medication‐induced.
Brown saw Dr. Ericson one more time in June 2015. Brown reported that he
could not put a key in a door lock or hold a sandwich. Dr. Ericson recorded that
Brown’s “moderate to severe action tremor” became “quite severe” when Brown
poured water from cup to cup. He referred Brown to a movement disorder center and
prescribed a new medication, topiramate, for the tremors. And because Dr. Ericson did
not accept Brown’s new insurance, he offered to refer Brown elsewhere.
On July 7, 2015, Brown saw Dr. M.S. Patil, a consultative examiner. At this visit,
Brown could turn a doorknob, squeeze, pick up a coin or pen, button, zip, tie shoelaces,
and turn a page—all of which contributed to Dr. Patil recording that Brown had no
difficulty with fine or gross manipulation of the hands or fingers. Dr. Patil diagnosed
Brown with, among other conditions, diabetes, chronic hypertension, and post‐triple
bypass status but expressly noted no involuntary tremors. Brown’s listed medications
included topiramate.
From January 2016 to April 2016, Brown had appointments to manage various
problems (such as diabetes and chest pain) with his new primary‐care doctor, Cornelius
Rogers, and cardiologist Dr. Looyenga. No complaints of tremors appear in their
reports, but Brown remained on topiramate.
Brown’s medical records were also reviewed twice by state‐agency medical
doctors, once at the application level in November 2014 and again at the reconsideration
stage in July 2015. Neither doctor opined that Brown had any manipulative limitations
with his hands.
After the agency denied Brown’s application, an administrative hearing
proceeded before an ALJ on June 8, 2016. Brown testified that in July 2015 (the period
the ALJ first inquired about), he had a number of medical issues, including “severe
tremors.” He testified that the tremors prevented him from holding a sandwich,
seasoning food, or going fishing (because he could not bait a hook). Brown added that
his hands trembled every day, but whether they trembled “depends on the position.”
He had not seen a neurologist since 2015. When the ALJ asked Brown to explain the gap
in neurology treatment, Brown said that he had lost his union‐sponsored insurance in
December 2014 and that, after he obtained public‐assistance insurance, his neurologist,
No. 19‐1363 Page 4
Dr. Ericson, had told him that he did not accept the new insurance. Brown also needed
a new primary‐care physician because of his new insurance, and he could not obtain
referrals to specialists until he had done so. But Brown testified that he had a neurology
appointment scheduled for the next week and that it had taken several months to get
this appointment.
The ALJ asked a vocational expert to consider the work available to a person of
Brown’s age and experience who had a variety of specified physical limitations. The VE
opined that the hypothetical claimant could perform Brown’s past work as a command‐
center operator. But, the VE testified, if that person could perform only occasional (as
opposed to frequent) bilateral handling and fingering, he could not do that job.
The week after the hearing, Brown visited neurologist Syed Ahmed, as planned,
and later submitted Dr. Ahmed’s report to the ALJ. The report described Brown’s
complaint of persistent tremors over the “past several years” that occurred when he
tried to write or eat. Dr. Ahmed also observed that Brown had “mild to moderate
postural tremors which become severe when he tries to hold anything in his hands,” as
well as “mild intention[al] tremor.” Dr. Ahmed prescribed a new tremor medication,
clonazepam, and referred Brown to a movement‐disorder specialist.
Applying the administration’s five‐step analysis, the ALJ determined that from
March 21, 2014 through July 7, 2015 Brown could not perform his past work or any
other jobs existing in significant numbers in the national economy and was thus
disabled during that time period. To determine if Brown’s disability continued, the ALJ
then went through the applicable eight‐step analysis, 20 C.F.R. §§ 404.1594(f),
416.994(b)(5), and concluded that medical improvement occurred as of July 8, 2015—the
date of the consultative exam with Dr. Patil—because Brown did not suffer from
tremors after that point. Without tremors, the ALJ reasoned, Brown could perform
“frequent” instead of “occasional” bilateral handling and fingering and therefore could
work as he did in the past as a command‐center operator.
The ALJ observed that Brown’s claim of significant tremors was “inconsistent”
with the “lack of treatment or follow‐up” after July 2015. Further, when Brown began
seeing his new primary‐care physician (and his new cardiologist), he did not complain
of tremors. The ALJ recognized that neurologist Dr. Ahmed observed tremors in June
2016 and did not discount that finding. But the ALJ was of the view that the recorded
tremors at that time did not establish that the tremors had been “ongoing and persistent
after July 2015” to the extent that they interfered with his ability to work. Brown’s
disability thus ended on July 8, 2015.
No. 19‐1363 Page 5
The Appeals Council denied review, and the district court upheld the ALJ’s
denial of benefits.
II
We review the ALJ’s decision under the deferential “substantial evidence”
standard, but we will not “scour the record” for reasons to uphold the decision. Moon v.
Colvin, 763 F.3d 718, 721 (7th Cir. 2014). An ALJ must support her determination using
medical evidence in the record. Id.
A
The evidence does not support the ALJ’s view of the medical record. The ALJ
improperly disregarded Brown’s description of his tremors as an ongoing problem
depending on the position of his hands. Because Brown did not complain of tremors
from July 2015 to April 2016, the ALJ found that the record did not support ongoing
and persistent tremors after July 8, 2015.
But we cannot agree that substantial evidence supports this finding of medical
improvement. First, to the extent that the ALJ relied on Dr. Patil’s July 2015 assessment
that Brown had no difficulty with fine or gross manipulative movements of his hands
and fingers, the tests Dr. Patil performed were not the ones noted to produce the
tremors. Accordingly, it is an overstatement of the medical record to conclude it
definitively shows that Brown’s tremors disappeared.
Second, the ALJ did not support her conclusion that Brown’s lack of tremor
complaints for several months showed the absence of tremors during that time. The
physicians who examined Brown during this period (Dr. Rogers, a family practitioner,
and Dr. Looyenga, a cardiologist) did not perform the tests that historically produced
Brown’s tremors, such as drawing a spiral, writing his name legibly, or pouring water
from cup to cup. So there is no affirmative evidence that Brown no longer experienced
any tremors during those activities. Third, and relatedly, the ALJ erred in stating that
Brown did not complain again of tremors between July 2015 and June 2016. After
Brown began seeing Dr. Rogers in January 2016 for primary care, he obtained a referral
to see a neurologist, whom he saw in June 2016. Dr. Rogers renewed Brown’s
prescription for topiramate in January 2016, only six months after Brown last saw
Dr. Ericson for his tremors. The ALJ’s analysis nowhere accounted for this evidence.
The lack of tremor complaints during this sliver of time—six months—does not support
a conclusion that tremors were absent during this time period.
No. 19‐1363 Page 6
It is possible that Brown’s tremors were well‐controlled sometime after July 2015,
as the record reflects that Brown remained on topiramate through the first three months
of 2016. Whether Brown’s tremors were well‐controlled is relevant to whether he
achieved medical improvement, because conditions that can be controlled with
medication are not disabling. See Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir. 2006).
But the ALJ did not base her decision on an inference that Brown’s tremors were well‐
controlled by medication, and we can review only the reasons an ALJ uses to support
her conclusions. Shauger v. Astrue, 675 F.3d 690, 695–96 (7th Cir. 2012).
Nor does the record support the ALJ’s observation that Brown had no “good
explanation for the delay” between neurology visits. The short gap coincides with the
termination of Brown’s union health insurance in December 2014. Brown testified that it
took him a couple months to obtain public‐assistance insurance in March 2015, and that
he learned only later (in June 2015) that his neurologist did not accept the new
insurance. Nor did Brown’s primary‐care doctor accept the new insurance, so Brown
had to establish a treatment relationship with a new primary‐care doctor and then get a
referral to a neurologist. The ALJ opined that “if his tremors were of such a severe
nature,” it would not have taken more than a year to see a neurologist after getting
Medicaid. We see this observation as speculative, as nothing in the record contradicts
the sequence of events that Brown testified about. See Murphy v. Colvin, 759 F.3d 811,
816 (7th Cir. 2014) (faulting ALJ for not asking “important questions to determine if
Murphy’s actions were justifiable”); see also Hill v. Colvin, 807 F.3d 862, 868 (7th Cir.
2015) (faulting ALJ for not considering how claimant would have paid for a specialist).
B
Relatedly, after reviewing Dr. Ahmed’s opinion, the ALJ did not properly
ground her decision with a medical opinion that Brown’s tremors were “on and off
again.” As Brown contends, the ALJ could not determine how Dr. Ahmed’s observation
of tremors in June 2016 affected the persistence of the tremor condition without
obtaining an updated medical review of the evidence by a state‐agency doctor.
An updated medical review was required before the ALJ could determine the
significance of Dr. Ahmed’s findings of tremors. We have repeatedly found error when
an ALJ determined the significance of medical findings on his or her own. For example,
we have remanded when the ALJ relied on his own assessment of mental‐health
treatment notes, Moreno v. Berryhill, 882 F.3d 772, 729 (7th Cir. 2018); concluded that a
physician’s report and MRIs were “similar” to existing evidence, Stage v. Colvin,
No. 19‐1363 Page 7
812 F.3d 1121, 1125 (7th Cir. 2016); and summarized the results of an MRI herself
instead of subjecting the MRI to medical scrutiny, Goins v. Colvin, 764 F.3d 677, 680 (7th
Cir. 2014). In Moreno, we rejected the Commissioner’s argument that newer mental‐
health treatment records showed improvement and so would not have made a
difference to the state‐agency reviewer’s opinion. 882 F.3d at 729. The error was that the
ALJ made his own assessment of the recent treatment records to conclude that they
showed improvement. Id. So too here: the ALJ independently decided that Dr. Ahmed’s
diagnosis was not evidence that the condition persisted after July 2015.
The ALJ did not cite medical evidence to support her inference of an “on and off
again” diagnosis of tremors, or tremors that “could improve or worsen.” Stage, 812 F.3d
at 1125; see also Goins, 764 F.3d at 680. The ALJ noted that Dr. Ahmed “may have”
referred Brown to a movement specialist and prescribed a new medication, but she
reasoned that these actions did not constitute evidence that the tremors were “ongoing
and persistent after July of 2015.” The ALJ did not mention Dr. Ahmed’s note that
Brown’s tremors become severe when he tries to hold anything (or Brown’s own report
that his tremors depend on the “position” of his hands)—something that might be
relevant to his ability to handle or finger objects. Without medical input, the ALJ could
not reliably make the inference that Dr. Ahmed’s June 2016 treatment notes reflect a
reemergence, rather than a continuation, of the tremors.
C
Finally, the ALJ erred when she determined that Dr. Nagubadi’s February 6, 2015
opinion, which limited Brown to only occasional handling and fingering, did not extend
past July 2015. By that time, Brown had stopped seeing Dr. Nagubadi. And, in July
2015, the consultative examiner did not observe tremors. July 2015 also marks the
beginning of Brown’s gap in neurology treatment.
But there is no inference to be drawn about the absence of follow‐up visits with
Dr. Nagubadi after June 2015—Brown stopped seeing her because he changed
insurance. At the time Dr. Nagubadi rendered her opinion on Brown’s limitations, she
was undisputedly Brown’s primary‐care doctor, and the ALJ accepted her
contemporaneous assessment.
Further, the subsequent gap in neurology treatment from July 2015 onward is
not, as the Commissioner contends, inconsistent with Dr. Nagubadi’s opinion that
Brown could handle and finger objects only occasionally. The treatment gap, as we
explained, coincides with Brown’s move to public assistance insurance in March 2015
No. 19‐1363 Page 8
and establishment of treatment in January 2016 with a new primary‐care physician who
then renewed his tremor medication and referred him to a neurologist.
For these reasons, we VACATE the judgment and REMAND the case for further
proceedings.